Four Sets of Nonconflicting Rules
Four Sets of Nonconflicting Rules
First guest post and first essay in a series of invited commentaries.
I am very pleased to present the Yost Post’s first guest author, Dan Klein, with a chapter excerpt from his recently released book Central Notions of Smithian Liberalism (free PDF at link), which was recently published by CL Press.
In addition to this lead essay, there will be several follow-up essays responding and commenting on the lead essay from invited commentators, with additional responses from Dan going forward.
I have also turned on comments for all readers for this series of exchanges, so please feel free to share your own thoughts! And be sure to send the essay along to anyone who you think might find this exchange of interest!
THE COMPLETE EXCHANGE:
1. Dan Klein “Four Sets of Nonconflicting Rules”
2. Torben Spaak Comment on “Four Sets”
3. John Cairns Comment on “Four Sets”
4. Andrew Humphries Comment on “Four Sets”
5. Dan Klein Reply to Torben and John
6. Dan Klein Reply to Andrew
Four Sets of Nonconflicting Rules
This essay formulates seven sets of rules. Of those seven, four are sets of nonconflicting rules:
#1. The actual current governmental law—in other words, legal rules or “positive” law.
#2. The grammar-like rules of commutative justice.
#3. All laws (both precise and accurate, and loose, vague, and indeterminate) that delineate the rightness of any decision, made by anyone; ethics writ large.
#4. The would-be laws of government conformant to the previous set; just government law, in the full sense of justice.
A qualification of #1 is immediately in order: The rules of set #1, government law, sometimes evidence conflict with one another. But the aspiration is for those rules not to conflict, and an absence of conflict is at least a conceptual possibility.
One could list other sets of nonconflicting rules, for example, those of the Major League Baseball or of the Roman Catholic Church. I submit, however, that sets #1–#4 are the only ones that are focal and central for moral theory, political theory, and jural theory. (If there were a set #5, what would it be?)
I have no formal training in law. So, why should you consider how I make sense of “law,” “jural theory,” “commutative justice,” and “natural jurisprudence”?
The needed training is, in part, training in navigating and overcoming taboos. Taboos surround commutative justice and have prevented moderns from doing commutative justice justice. Because commutative justice (CJ) has not been done justice, neither has jural theory. You need to see CJ to see jural theory. The failures to do CJ justice sunk what Smith called natural jurisprudence. This essay suggests a resuscitation of natural jurisprudence.
Figure 1 has two panels. The two panels overlap at box 5. In your mind you can staple the two panels together there. The symbol ⊂ means “is a proper subset of”, hence, A ⊂ B means that A is a proper subset of B. You can turn the symbol around and say the same thing as B ⊃ A (just as A < B is the same as B > A).
Figure 1: Sets of rules/laws
The diagram presupposes a jurally-integrated polity.
Notice that boxes 1, 2, 3, and 4 say “rules,” while the new boxes 5, 6, and 7 say “laws.” I will speak to the distinction between a rule and a law, as well as to the coloring.
Notice that box 1 and box 7 have something in common, namely, rules of the government. Box 1 is legal rules, positive law, and box 7 is “Just government laws.” It’s quite a distance between them. In between is ethics.
Let’s start with “rule.” The concept involves a precept, for example: Take an umbrella if you’re going out in the rain. A precept takes the form of an imperative. The broad precept of commutative-justice rules is: Don’t mess with other people’s stuff. The precept can be broken down into its particularities, getting into the parsing of “stuff,” “other people’s,” and “messing with.”
Now, when is a rule a law? Is “Take an umbrella if you’re going out in the rain” a law?
Seeing a rule as a law is a lens. It might make sense in some discourse contexts to speak of the umbrella precept as a law. So, what is the “law” lens? What is involved in seeing a rule as a law?
First, according to Samuel Pufendorf, Gershom Carmichael, Francis Hutcheson and others, a law involves a precept and a sanction:
In every law there are two parts, the precept and the sanction. The precept shews what is required or forbidden; and the sanctions contain the rewards or punishments abiding the subjects, as they observe or violate the precept. (Hutcheson 2007, 106)
Thus, a law involves not only an imperative “Do/Don’t do X”, but also an “Or else!” The “or else” can take the form of reward for observing or punishment for violating the precept, or both.
Second, in the same tradition of thinkers, there is another feature of “law”: Law is a rule laid down by a superior. And it is the superior or his agents who apply the sanctions. Michael Zuckert (1994, 189) writes: “Only if one can find in nature the will of a superior can there be said to be a law of nature, as opposed, say, to a natural good. Obligation, and thus law, can ensue only when there is an antecedent superior/subordinate relationship.”
What counts as a “superior”?
In my view, even within the moral ecology of the stable, jurally-integrated polity—for example, a stable, jurally-integrated nation-state—there are multiple superiors, and their laws sometimes, even often, conflict. The laws in box 5 are not all compatible. In particular, the laws of the jural superior (variously called the sovereign, the ruler, the lawmaker, the governor, the government, etc.) often conflict with the laws of the supremely superior spectator, God/Joy, and of our shared characterizations of such a spirit. As for the other two boxes in Figure 1 that feature the word “laws,” namely boxes 6 and 7, in each case the laws there are compatible; there, within each box, are no conflicts between laws within the box.
It would usually be rather far-fetched to see “Take an umbrella…” as a law, but it is instructive to describe what it would take. We need a sanction, we need a superior, and we need the sanction to be the work of the superior or his agents. One way to get all this done is to believe in a providential God—an ontological superior—who made a “ruly,” as opposed to unruly, universe, with a law containing “Take an umbrella…” as a precept (contextualized in history, of course), and getting wet as the sanction.
Now, suppose you are not a theist. I cannot call myself one—rather, I call myself agnostic. Is there, then, a way to see “Take an umbrella…” as a law?
Yes, there is. Though allegorical, Joy can be fashioned a being. Joy has superhuman knowledge and superhuman benevolence. She subtly communicates to you: “Take an umbrella…” But since she is not the author of the wetness, the wetness does not work as the sanction. Rather, the sanction is: “Or else I will be disappointed and unhappy with you.” Not only can Joy, along with her representatives, such as our conscience, be seen as a law-giving superior, but such disapproval can be seen as the sanction.
You might think that merely allegorical disapproval should not be taken serious and certainly should not serve as the basis for elevating a rule of thumb to the status of law. Here, I urge caution. For one think, notice this: If other people have a similar sense of Joy and thus take to heart sensibilities aligned to Joy, then her disapproval would tend to correspond to the disapproval of actual fellow human beings around—“You idiot! Why didn’t you take an umbrella?!” That smarts, and it follows from violating the precept. I am not urging you to always think of norms as laws, but it is helpful to see how to see a norm as a law.
Some people seem to reserve the word “law” (at least in matters of rules for social interaction) for positive government law. Let’s call it flat legal positivism. It strips non-legal or extra-legal moral thought and discourse of the word law, and all that it carries, including a sense of a superior and the superior’s sanction. The only sort of superior that flat legal positivism recognizes in these matters is the jural superior, hence the only law, for the flat legal positivist, is government law. Such a view is especially characteristic of people who are irreligious to the point of being anti-religion and throwing the baby out with the bathwater. I think it is a mistake to never admit disapproval, notably that deriving from our own conscience, as a lawful sanction.
Government laws of any functional polity are and must be the creatures of norms and spirits, like God or Joy. The government law specifies both a precept and (however vaguely) a sanction that is to be carried out by government agents. Suppose Jim is some ordinary private citizen who violates the precept. It then falls to a government agent, Bob, to apply the sanction. Now, let us to suppose that there is a law for Bob to abide. For Bob, the precept is the applying of the sanction against Jim; but what is the sanction relating to that precept? Perhaps there is a specified sanction, and a specified sanctioner, named Ralph. But the problem recurs: What if Ralph shirks his (third-order) precept? Clearly, if this recurrence rolls back to anything redeeming, it rolls back, principally, if not wholly, to norms. And without such norms—Consciences! Spirits!—to see sanctions through, the law in the first instance will scarcely carry the sanction it entails, in which case it scarcely meets Hutcheson’s definition of law. Empty verbalisms do not law make. Law only exists within human norms and consciences and spirits that give those norms meaning and coherence. I expect that any flat legal positivist would agree with all this. Yet he refuses the word “law” for that which sustains whatever decency and integrity is found in government law. Adam Smith said that the rules of all virtues “are justly regarded as the Laws of the Deity” (TMS 161, italics added). The semantic decision of the flat legal positivist breaks radically with our civilizational moral intuitions and cultural underpinnings, which are quasi-religious when they are not religious.
I imagine the flat legal positivist responding, “Oh, but those spirits aren’t real.” And I imagine C.S. Lewis replying: “Oh? I am inclined to see them as the realest things we know. After all, they underpin what you deem ‘real.’”
So, getting back to Figure 1, our discussion of the meaning of law shows us that within any particular law there is a precept, and, for our purposes here, it is the precept that I wish to consider the rule within that particular law (in other words, leave aside rules that are entailed in the sanction). Thus, for any set of laws, we can also identify the corresponding set of precepts, and identify that set as a set of rules. Thus I speak of boxes 5, 6, and 7 as sets of rules, even though labeled “laws.”
We thusly understand every one of the seven boxes as representing a set of rules. Those seven boxes can be divided into two categories: Sets of nonconflicting rules (blue), and sets of potentially-conflicting rules (pink).
Consider box 3, “Jural rules.” As stated in Diesel and Klein (2021), “jural” deals with the grammar-like rules of commutative justice and with the legal rules of government, which also aspire to be grammar-like. Among the rules within box 3 are the precepts within tax law, including for the Internal Revenue Service: “Forcibly take people’s income as per the tax code.” But also among the box-3 rules are CJ rules, including: “Don’t forcibly take others’ stuff.” The precept of CJ is against the initiation of coercion; the government institutionalizes initiations of coercions. I could use as an example, instead of taxation, any of the government’s 10,000 commandments that initiate coercion. Box 3 contains conflicting rules and hence is pink.
Sets of potentially-conflicting rules abound. What are special are the few touchstone sets of nonconflicting rules. I believe that the blue sets in the figure are the four very special sets of nonconflicting rules.
By resuscitating CJ, we may resuscitate proper jural theory. Further, those resuscitations may then resuscitate an idea of natural jurisprudence. The definition ought to include the following feature as necessary or essential: A study of rules and laws that duly recognizes CJ as one of the important sets of rules. I’m not sure what else is necessary, or what set of things sufficient, for natural jurisprudence. But if a study does not recognize CJ as an important set of rules, then it is not natural jurisprudence.
The “natural” of natural jurisprudence is fitting, one reason being that CJ should be regarded as a system of natural conventions, and hence natural law, along the lines suggested in “Nature, Convention, and Natural Convention” (Klein and Matson 2022).
References
Diesel, Jonathon, and Daniel B. Klein. 2021. A Call to Embrace Jural Dualism. Economic Affairs 41(3): 442–457. Link
Hutcheson, Francis, 2007 [1747]. A Short Introduction to Moral Philosophy (Philosophiae Moralis Institutio Compendiaria. Edited by L. Turco. Indianapolis: Liberty Fund. Link
Klein, Daniel B. and Erik W. Matson. 2022. Nature, Convention, and Natural Convention. Just Sentiments, Adam Smith Works, April 22. Link
Smith, Adam. 1976 [1790]. The Theory of Moral Sentiments. Edited by D. Raphael & A. Macfie. Clarendon Press. Link
Zuckert, Michael P. 1994. Natural Rights and the New Republicanism. Princeton: Princeton University Press.